Health Care Complaints Commission v Hatoum [2025] NSWCATOD 93;

"The practitioner was formerly known as George Abou-Hatoum.

The practitioner completed a Bachelor of Medicine / Bachelor of Surgery at the University of New South Wales in 1994. The practitioner was first registered as a medical practitioner in Australia on 4 January 1994.

On 6 August 1999, the practitioner was de-registered with a non-review period of three years following adverse findings made by the Medical Tribunal in relation to three complaints of boundary violations with female patients.

On 28 May 2003, the practitioner was granted re-registration under conditions. Those conditions expired in June 2005.

Between 2004 and 2007, the practitioner worked as a Career Medical Officer ("CMO") at Fairfield Hospital.

In 2007, the practitioner and his wife set up a General Practice in Bankstown.

On 13 August 2013, a section 150 hearing was held in relation to two complaints of boundary violations with female patients. The Medical Tribunal imposed nine conditions on the practitioner's registration.

On 31 July 2020, a section 150 hearing was held in relation to a complaint of criminal charges of several serious offences. The Medical Council suspended the practitioner's registration with effect from 5.00pm 31 July 2020.

On 9 December 2020, the practitioner pleaded guilty in the Local Court of NSW to one offence of "dishonestly obtain financial advantage by deception" pursuant to section 192E(1)(b) of the Crimes Act 1900 (NSW); and one offence of "make false document to obtain financial advantage" pursuant to section 253(b)(ii) of the Crimes Act ("the convictions").

On 16 and 17 May 2022, the practitioner was the subject of proceedings at the NSW Civil and Administrative Tribunal ("the Tribunal") in relation to the convictions. The Tribunal noted that the practitioner had been suspended from 31 July 2020 by order of the Medical Council following the section 150 hearing on this date. On 6 July 2022, the Tribunal suspended the practitioner until 16 August 2022 and imposed a number of conditions on the practitioner's registration upon conclusion of the period of suspension.

On 28 August 2022, the practitioner commenced working at Victoria Tower Medical ("the Clinic").

Patient A has a history of anxiety and depression. On 17 August 2022, Patient A had a miscarriage. Between 5 and 9 October 2022, Patient A attended three consultations at the Clinic regarding abdominal pain. Patient A did not consult with the practitioner during this period.

On 13 October 2022, Patient A attended a telehealth consultation with the practitioner to obtain results of a blood test and CT scan of her abdomen and pelvis conducted on 11 October 2022 ("the CT scan").

On 14 October 2022, Patient A attended an in-person consultation at the Clinic with the practitioner for an abdominal examination."

1. The Complaint document then sets out the complaints on which the HCCC moves. We set those out here:

"COMPLAINT ONE

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has:

i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

PARTICULARS OF COMPLAINT ONE

1. On 13 October 2022, during a telehealth consultation with Patient A, the practitioner failed to appropriately:

a. inform Patient A of the results of the CT scan; and

b. explain the findings of bowel malrotation.

2. On 13 October 2022, during a telehealth consultation with Patient A, the practitioner failed to appropriately provide treatment options to Patient A based on the results of Patient A's CT scan, in that:

a. the practitioner failed to make or suggest a referral to a surgeon; and

b. the practitioner failed to update the referral to the gastroenterologist to include the CT scan results.

3. On 14 October 2022, during consultation with Patient A at the Clinic, the practitioner failed to appropriately:

a. inform Patient A of the results of the CT scan; and

b. explain the findings of bowel malrotation.

4. On 14 October 2022, during a consultation with Patient A at the Clinic, the practitioner failed to appropriately provide treatment options to Patient A based on the results of Patient A's CT scan, in that:

a. the practitioner failed to make or suggest a referral to a surgeon; and

b. the practitioner failed to update the referral to the gastroenterologist to include the CT scan results.

COMPLAINT TWO

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) or section 139B(1)(l) of the National Law in that the practitioner has:

i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, or

ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

PARTICULARS OF COMPLAINT TWO

1. On 14 October 2022, during a consultation with Patient A at the Clinic, the practitioner made inappropriate comments, including when:

a. he asked Patient A words to the effect of "Are you married? I'm just curious to know if it hurts when you have intercourse with your husband?";

b. he asked Patient A about the size of her husband's penis;

c. he asked Patient A whether she masturbates or self-pleasures;

d. Patient A stated that she did not masturbate or self-pleasure, stated words to the effect of "I'm sure you are not telling me the truth and you're probably just too embarrassed to tell me";

e. he stated words to the effect of "God gave you a clitoris for a reason, so you should use it and explore your body";

f. he stated words to the effect of "You're quite tiny so if you're feeling pain maybe you should get on top during sex";

g. he stated words to the effect of "You should be orgasming during sex for your mental health";

h. he stated words to the effect of "You should be crystal clear with your husband about your needs";

i. he stated words to the effect of "Look at you, your body's thin, you look great".

2. On 14 October 2022, during a consultation with Patient A at the Clinic, the practitioner acted inappropriately when he:

a. winked at Patient A;

b. patted her on the knee.

COMPLAINT THREE

The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has:

i. contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW).

PARTICULARS OF COMPLAINT THREE

1. On 14 October 2022, the practitioner failed to keep and maintain adequate records of Patient A's consultation, including failing to appropriately record the reasons for consultations or clinical progress.

COMPLAINT FOUR

The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

ii. in the alternative, engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

PARTICULARS OF COMPLAINT FOUR

1. Complaints One, Two and Three, and the particulars therein, are repeated and relied upon both individually and cumulatively."

1. By his Amended Reply filed 23 June 2025 the Respondent made admissions and denials as follows:

"AMENDED REPLY

The Respondent accepts that the background to all Complaints is correct.

Complaint One

The Respondent admits Complaint One and each of its Particulars.

Complaint Two

The Respondent admits Complaint Two (i).

The Respondent denies Complaint Two (ii).

The Respondent admits asking questions and making comments to the effect of those reproduced in Particular 1. a. to i.

The Respondent does not admit using those precise words.

The Respondent denies Complaint Two, particular 2 (a) (that he winked at Patient A).

With respect to Complaint Two, particular 2 (b) (that he patted her on the knee), the Respondent does not recall patting Patient A on the knee. He accepts that it is possible this occurred but would have intended it only as a gesture of comfort.

Complaint Three

The Respondent admits Complaint Three.

Complaint Four

The Respondent denies Complaint Four."

1. In support of its case the HCCC relied upon the following documents which were admitted to evidence.

(1) Exhibit A1: A bundle of documents relied upon by the HCCC.

(2) Exhibit A2: A Statement made by Patient A.

(3) Exhibit A3: AHPRA Evidentiary Certificate relevant to the Respondent.

(4) Exhibit A4: A bundle of documents titled "Material of Michele Benson, Clinical Psychologist."

(5) Exhibit A5: An email dated 19 June 2025 from the HCCC to Dr Golding (expert witness) and the response from Dr Golding dated 21 June 2025.

(6) Exhibit A6: Amended Complaint document (showing amendment to Complaint Two).

1. The HCCC provided a written submission for the assistance of the Tribunal. That document was marked for identification as MFI 1.
2. The HCCC also provided the Tribunal with an Aide Memoire document titled "Chronology". That document was marked for identification as MFI 2.
3. The Respondent relied upon the following documentary evidence.

(1) Exhibit R1: Statement of the Respondent dated 5 June 2025.

(2) Exhibit R2: Amended Reply filed 23 June 2025.

1. There was no objection by the HCCC to the Respondent being permitted to rely upon his Amended Reply.
2. The hearing of Stage One was contained to two days. None of the witnesses relied upon by the HCCC were required for cross-examination.
3. We now set out a summary of the evidence relied upon by the HCCC.

1. The Statement made by Patient A on 7 November 2023 is contained in exhibit A1 at page 17 and following. Although the "Background to all Complaints" section of the Complaint sets out some detail relating to Patient A and even though Complaint One, and all particulars thereto are admitted, there are other facts which we noted in that statement. We have also noted matters outside of the admissions made by the Respondent in relation to Complaint Two.

(1) At the date of her statement Patient A was 35 years of age.

(2) When Patient A had her first consultation with the Respondent (via telehealth) it was the first time she had any communication with him. The GP whom she usually saw was not available.

(3) The purpose of the consult booked by Patient A with the Respondent was to ascertain the result of a CT scan and blood tests she had undertaken following referral from her preferred GP, who also worked at the Victoria Tower Medical Centre (VTM).

(4) In the telehealth consult on 13 October 2022 the Respondent told Patient A she had diverticulitis and that she should attend on him the next day for a more in-depth consultation.

(5) The face to face consultation with the Respondent took place on 14 October 2022.

(6) Patient A stated that she was asked to sit in a chair in the Respondent's consultation room which she felt was very close to the place where the Respondent sat.

(7) A matter of concern for Patient A was that during the consultation she was not told by the Respondent that she had been diagnosed with "gut malrotation". This was something she later became aware of when she was hospitalised on 25 March 2023.

(8) During the consultation on 14 October 2022 Patient A said that the Respondent had patted her on her knee a couple of times and also winked at her. (NOTE: the wink and patting on the knee, as alleged, is denied by the Respondent in his Reply document however, Patient A was not required for cross-examination.)

(9) The Respondent said to Patient A something like: "Look at you your body is thin, you look great". The use of those words coupled with the patting on her knee and the Respondent winking at her, made Patient A feel very uncomfortable. She felt "something is not right".

(10) The Respondent then examined the abdomen of Patient A whilst she lay on his examination bed. During that examination the Respondent asked her a series of questions which were unexpected by Patient A and are recorded in the Particulars to Complaint Two. Patient A was shocked by the content of the intimate questions she was asked.

(11) Following the abdominal examination Patient A again sat in the chair which she said was quite close to the position the Respondent was seated. In that configuration of proximity the Respondent continued to ask Patient A about aspects of her intimate relationship, and also her own masturbation or "self-pleasuring". He gave her advice about her mental health which he connected to her sexual functioning.

(12) Patient A experienced the manner of the Respondent during the consultation as "very over-familiar", "over friendly" and "flirtatious".

(13) The Respondent had referred Patient A to a psychologist. It was not a formal referral rather the Respondent had written the name of the psychologist on a piece of paper and had given that to Patient A.

(14) Patient A did not observe the Respondent making any notes during the consultation. She denied asking him not to make any notes about her "sex-life".

(15) As Patient A walked out of the consultation with the Respondent, she said she "felt so violated".

(16) As soon as she had left the medical practice Patient A rang her husband and told him of the events of the consultation.

(17) On 17 October 2022 Patient A made an anonymous complaint about the consultation with the Respondent and she wrote down her recollection of the consultation.

(18) On 25 March 2023 Patient A was admitted to hospital with severe abdominal pain. She was diagnosed with mid gut non-rotation (sic). It was only after admission to hospital in March 2023 that she realised the CT scan she had in October 2022 showed mid gut malrotation.

1. Patient A signed another statement on 13 June 2025 (see exhibit A2). That statement addressed the time of the telehealth consultation with the Respondent on 13 October 2022.
2. Exhibit A4 contains records of Michele Benson, psychologist. Ms Benson saw Patient A as a patient on 16 November 2022. On that occasion, the medical practice for whom the Respondent worked paid for the consultation. Patient A provided an extensive history which can be summarised as indicating she suffered longstanding anxiety for which she was medicated.
3. Exhibit A3 is the Evidentiary Certificate prepared by AHPRA. The content is largely more relevant to a Stage Two hearing, however, we note that the Respondent had been suspended from practice between 31 July 2020 and 16 August 2022. The consultation with Patient A took place within two months of the Respondent recommencing practice. His return to practice was subject to extensive conditions which had been imposed by the Tribunal. The extent to which the recent return to the practice of medicine is relevant to this Stage One decision, we will address when considering the parties' submissions.
4. Exhibit A5 is an email chain between an officer of the HCCC and Dr Michael Golding, the expert engaged by the HCCC for this proceeding. The email chain is dated between 19 and 21 June 2025. The HCCC provided Dr Golding with a copy of the Respondent's Reply document together with a copy of his statement dated 5 June 2025. Dr Golding advised that nothing contained in the Respondent's documents received by him would cause him to alter his earlier provided report.
5. Exhibit A1 contains 897 pages and is relied upon by the HCCC to establish its case. We have particularly noted the following. In recording our observations of the material contained in exhibit A1, we have done so conscious of the fact that the Respondent has admitted the facts supporting Complaint One and Complaint Two and challenges the case brought against him only in relation to sub-paragraph (ii) of Complaint Two, which alleges unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law and Complaint Four which alleges he is guilty of professional misconduct.
6. Some of the documents contained in exhibit A1 were the subject of the cross-examination of the Respondent by the HCCC in the hearing. We will address those documents, where relevant, as we consider that cross-examination. Additionally, some of the documents in exhibit A1 are more relevant to a Stage Two hearing.
7. Included in exhibit A1 are copies of relevant Codes of Conduct published by the Medical Board of Australia. There are also extracts from the Royal Australian College of General Practitioners' published Standards for General Practices. These are codes and guidelines which are referred to in the expert report provided by Dr Golding.
8. On page 207 and following of exhibit A1 is the report of Dr Golding dated 27 May 2024. The report consists of Dr Golding answering a series of questions posed by the HCCC and upon which the HCCC framed its Complaint. In the report we noted the following evidence in particular.

(1) In relation to Complaint One, Particular 1, Dr Golding opined that, accepting the description provided by Patient A of the telehealth consultation on 13 October 2022 as accurate, the Respondent had failed to inform Patient A accurately of the results of the CT scan undertaken by her and for which he held the report. Dr Golding found the conduct of the Respondent in relation to that consultation fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In particular Dr Golding was critical of the Respondent having failed to tell Patient A of the reported intestinal malrotation. He addressed the potential consequences for Patient A of that failure to advise. He also opined that the advice given by the Respondent to Patient A that the CT scan report disclosed she had diverticulitis was not supported by the reported "uncomplicated diverticular disease with no evidence of inflammatory changes identified."

(2) In relation to Complaint One, Particular 2, Dr Golding opined that the conduct of the Respondent fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, even on his own version of the 13 October 2022 telehealth consultation. In particular his failure to update an existing referral to a gastroenterologist which Patient A had been provided, was a significant failure on the part of the Respondent.

(3) In relation to Complaint One, Particular 3, Dr Golding opined, that based upon the evidence of Patient A as to the consultation which took place on 14 October 2022, the conduct of the Respondent fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In particular the failure of the Respondent to inform Patient A that the CT scan reported intestinal malrotation. He was also critical of the continued advice that Patient A was suffering from diverticulitis which diagnosis was not supported by the report of the CT scan.

(4) Complaint One, Particular 4 addresses the failure of the Respondent during the consultation on 14 October 2022, to suggest a referral to a surgeon and failure to update the referral, which had been made for Patient A, by her preferred practitioner, to a gastroenterologist, so as to report the finding of the CT scan recently undertaken by Patient A. Such failure amounted to the Respondent's conduct falling significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

(5) Dr Golding was asked to provide his opinion as to the conduct of the Respondent in relation to the words/language used by him in the consultation which took place on 14 October 2022 and which are the subject of Complaint Two. The words he was asked to consider were those reported by Patient A in her statement which is in evidence before us. Dr Golding referred to sections 1.1, 3.1 and 4 of the Sexual Boundaries Code. He set out that provision in his report. He also referred to and set out sections 2.1, 4.2.6, 10.2 (professional boundaries). He opined that the words used by the Respondent fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He was also asked to address the conduct described by Patient A as being "over familiar, over friendly and flirtatious." He noted she had described feeling very uncomfortable and felt the questions asked of her by the Respondent were inappropriate and unprofessional. His opinion as to the conduct of the Respondent as falling significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience included the conduct of the Respondent touching Patient A on the knee and his winking at Patient A.

(6) The report of Dr Golding addressed Complaint Three which alleged unsatisfactory professional conduct arising from the Respondent's medical record of his consultations with Patient A. Dr Golding opined that in relation to the medical record made by the Respondent of his consultations with Patient A the conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Part of the opinion addressed the Respondent's assertion that Patient A had asked that he not record detail of the consultation which addressed aspects of sexual health and intimacy with her husband. That alleged request was denied by Patient A.

(7) Dr Golding referred to Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) and in particular cl (2)(a) to (d). He set out the content of that section. He also set out section 10.5 of the Medical Board of NSW, Good medical practice: a code of conduct for doctors in Australia (October 2020) which related to maintaining clear and accurate medical records.

1. The Respondent relied on his statement dated 5 June 2025. In that we noted the following in particular.

(1) In relation to the complaint made by Patient A the Respondent appeared before the Medical Council of NSW on 21 July 2023. There was a hearing conducted pursuant to s 150 of the National Law.

(2) The Respondent acknowledged that the medical records prepared by him for the consultations with Patient A were inadequate. He also acknowledged that his conduct in the consultation he had with Patient A on 14 October 2022 was not acceptable.

(3) The statement includes the following paragraph.

"12. As I said when Patient A first raised her concern with the Practice and to the delegates, I am truly sorry for making Patient A feel so uncomfortable. That was certainly not my intention but I accept it did have that effect. As I have also said, the consultation on 14 October 2022, was a complete "train wreck" and the more difficult and uncomfortable it became for both of us, the less equipped I was to terminate it and make other arrangements for Patient A with a female colleague."

(4) Paragraphs 13 to 18 inclusive are not relied upon for this Stage One hearing.

1. The Respondent gave oral evidence in the hearing before us. We have noted the following in particular from that evidence.
2. In his evidence in chief the Respondent confirmed the content of his written report dated 20 October 2022 was true. The report made by the Respondent is contained at pages 91 and 92 of exhibit A1 (Note: misdescribed in the index to exhibit A1 as being dated 20 October 2020). He also stated his responses made to the Medical Council Reviewer on 29 November 2022 were accurate. Likewise his evidence given in the s 150 hearing on 21 June 2023 was true. He also confirmed the content of his statement provided to the Tribunal and dated 5 June 2025 was true.
3. In relation to Complaint Two, Particular 2(b) the Respondent said it is possible he did pat Patient A on her knee during the consultation. He said he has patted patients on the knee or back as part of a reassurance to them.
4. Asked about the allegation he had winked at Patient A during his consultation with her, the Respondent said that Patient A may have perceived he did that although he did not consciously wink at her. He said that he was born in the Middle East. He said: "I am a touchy type of person."
5. The Respondent is currently working in a medical practice at Bankstown, a Sydney suburb.
6. The Respondent was cross-examined by counsel for the HCCC. We noted the following in the evidence he gave during the cross-examination.
7. The Respondent was asked about historical interventions he has been involved in with the Medical Council of NSW and in particular involving female patients. He told the Tribunal about his early decision to restrict his practice as a GP with female patients. He said that was mainly to protect himself.
8. The Respondent was asked about his learning of the applicable Codes of Conduct for a medical practitioner including the necessity to maintain proper medical records. He said he had knowledge of the requirements including requirements surrounding maintaining sexual boundaries with patients and conducting himself legally and ethically. He agreed he had completed courses in medical ethics and the making of medical records in 2020.
9. The Respondent said that, following his participation in a s 150 hearing in July 2020 he had moved the desk in his consultation room so that he could not physically touch patients while he was seated in consultation. In August 2020 the Respondent had undertaken further training in "boundaries". He said he had particularly learned to conduct himself so that there could be no room for misinterpretation.
10. The Respondent said he had talked to his psychologist Mr Pignataro about achieving effective communication with patients. He also said Mr Pignataro had spoken with him about trying to keep his interaction with patients "very professional".
11. The Respondent agreed he had been "in trouble" (in a disciplinary sense) in relation to making medical records for patients at an earlier time.
12. In August 2022 the Respondent commenced employment at the Victoria Tower Medical Centre (VTM). He saw female patients in that practice. He agreed he lacked experience in relation to female health at that time. He has undertaken a course in women's health since he commenced working at VTM. The Respondent said that, notwithstanding his acknowledged lack of experience in matters relating to female health, in August 2022 he did feel confident about discussing female sexual issues with female patients.
13. In his supervision meetings in August 2022 he had spoken about patient doctor boundaries. In September in his supervision meeting, he had reported he was building rapport with patients. By October 2022 about half of the patients he was seeing were female.
14. The Respondent was then asked about his consultation with Patient A on 13 October 2022. This was the telehealth consultation. He said he had read her medical notes before speaking with her. He was aware she suffered from anxiety at some stage of his contact with her. He had become aware at some time that she had been referred to a psychologist. He said he would have known she was on medication for her anxiety. He did read a note made by Dr Ng (page 418 of exhibit A1). That note set out detail of a consultation on 5 October 2022 where Patient A presented with abdominal pain. Dr Ng had ordered an ultrasound. The Respondent said he became aware of that. The Respondent had read the notes made by Dr Noussair on 6 October 2022. He was aware Patient A had been referred to a gastroenterologist. He knew a CT scan had been ordered. He understood on 13 October 2022 that Patient A was ringing to be told the result of the CT scan.
15. When the Respondent held the telehealth consultation with Patient A on 13 October 2022 he had read the results on the CT scan report. He entered in the medical notes for Patient A "diverticular disease". He did not enter "malrotation". He did that because he considered Patient A's primary diagnosis to be diverticulitis. The Respondent admits his failure in not telling Patient A precisely what was reported about her condition on the CT report.
16. The Respondent said that it was his usual practice in October 2022 to read out aloud to a patient the report on a CT scan in consultation. The Respondent asserted he did tell Patient A the report stated she had malrotation of the gut. He denied he told her she had diverticulitis asserting he told her she had a diverticular condition. (We note that evidence is at odds with the evidence of Patient A and that Patient A was not required for cross-examination on her evidence. The Respondent has also admitted the Particulars of Complaint One in his Reply document).
17. The Respondent was asked about the layout and size of the consulting room he used on 14 October 2022 when he saw Patient A. He said the room was the same as it was presented to him (he had made no changes to it). He said the room was small. He said the diagram made by Patient A of the consultation room was not accurate. He said that although he was sitting close to Patient A there was a panel between them.
18. The Respondent was asked if Patient A had told him she had a sexually transmitted infection (STI). He could not recall. He had read in the notes a recording that Patient A had HPV (Human Papillomavirus). He said that is a STI.
19. In relation to Complaint One, Particular 3, the Respondent was asked if he accepted he did not (a) inform Patient A of the results of the CT scan; and (b) explain the findings of bowel malrotation. He said he did accept that.
20. The Respondent was taken to the words in paragraph 9 of the statement made by Patient A (page 18 of exhibit A1). It was put that he had said those words. The words were: "Overall you're very healthy"; "Look at you. Your body's thin, you look great." The Respondent said he would not have used those words. He said: "I would have said she was in a reasonable body weight. He said she had been very underweight before but was now BMI of 20. He did not recall if he had patted her on the knee, however he conceded he may have done so to comfort her. He said she was very distressed at the time, however he could not recall her crying. He denied he intentionally winked at her.
21. The Respondent was asked about his physical examination of Patient A's abdomen. He was asked if during the examination he had asked her if she was married. He could not recall when he asked that question. He agreed he had a discussion with Patient A about whether sexual intercourse was painful for her. He agreed that discussion was inappropriate. He agreed she would not have been prepared for such a conversation.
22. The Respondent was taken to the words Patient A said were uttered by him in the 14 October 2022 consultation. The words complained about are set out in Complaint Two, Particular 1. Whilst not admitting the exact words said to be attributed to him, the Respondent accepted the subject matter was raised by him in the questions he asked Patient A. He agreed the conversation became "sexual counselling". He agreed he asked Patient A if she masturbated and that such a question was irrelevant to the abdominal pain she presented with. He agreed he had not sought her consent to ask her about any aspect of her sexual functioning or participation.
23. The Respondent conceded that years before the consultation with Patient A on 14 October 2022 he had "been in trouble" for having asked a female patient about her masturbation practices. He conceded he did not have any credentials for giving sexual counselling.
24. It was put to the Respondent that paragraph 18 on page 19 of exhibit A1 was correct. In that paragraph Patient A had stated "I definitely did not ask him not to record the conversation about my sex life." The Respondent denied that. He said words to the effect of: "She didn't want my supervisor to know about the sex discussion. My supervisor was well known to her husband. I respected her wishes. I should have made notes."
25. We pause here to note that in the statement made by Patient A on 14 January 2023 and included in exhibit A1, she stated in paragraph 19 that immediately following the consultation on 14 October 2022, she had telephoned her husband and told him what had happened. We consider such action is inconsistent with Patient A allegedly being concerned that her husband may be told about the content of the consultation if it was recorded in the medical notes of Patient A held by the medical practice.
26. It was put to the Respondent that asking her about her masturbation posed a risk to her. He agreed that was so. When asked what that risk was, he said words to the effect of: "She was uncomfortable with the question, and I did not have her consent."
27. In re-examination the Respondent was asked some questions. One of the questions was whether he could now remember the exact words Patient A had used when he said she had asked him not to record anything in the medical notes about the sexual aspect of the consultation, the Respondent replied: "No".

The written submission provided by the HCCC and dated 4 June 2025 (MFI 1)

1. The HCCC provided a written submission which was prepared before the Respondent filed his Reply document and his Statement of evidence. It is an extensive document and addresses topics including an outline of the case the HCCC is presenting, detail of the evidence supporting each of the Complaints One to Four, and a summary of the relevant principles to be embraced by the Tribunal in the hearing and consideration of this case (Stage One).
2. In response to a request from the Tribunal, the HCCC has helpfully provided an outline of the oral submission it provided at the conclusion of the hearing. It was only at the conclusion of the hearing that the HCCC really knew the case being presented by the Respondent.

1. In the document titled "Closing Submission of the HCCC Stage 1" we have particularly noted the following.
2. The HCCC submitted the Tribunal would find the Particulars 1 and 2 of Complaint One established. The HCCC pointed to paragraphs 7 to 10 of its original written submission and then added the following (footnotes omitted):

"The patient's complaint to AHPRA says that the practitioner did not mention malrotation.

The patient's statement says that the practitioner did not mention malrotation during the telehealth.

The patient's statement and complaint were admitted without objection.

The patient was available to give evidence.

She was willing and able to give evidence if needed.

She was on stand-by to join the AVL.

The patient was not required for cross-examination.

The practitioner did not challenge the patient's credibility.

The patient's evidence (her statement and complaint) is consistent with her actions.

She made the complaint when she was upset as she had not been told about the malrotation.

That explains the timing of her complaint.

That is consistent with the psychology notes.

Patient A first complained to the practice on 17 October (by email). She did not mention the malrotation in her original complaint to the practice because she didn't know about it yet. At that time, she was (only) complaining about the way the consult (on 14 October) took place.

The patient was later (on 25 March 2023) admitted to hospital with abdominal pain.

When she was admitted, the patient gave a history including diverticulosis (she didn't know about the malrotation).

Then the hospital did its own CT scan.

The hospital CT scan again showed malrotation (that was the first time she was aware of it).

Then she was discharged (on 27 March 2023).

Then she went to see her psychologist (on 29 March 2023): The psychologist made the following note: "Ended up in hospital over weekend only home yesterday. Bowel malrotation/obstruction very painful. Learned has had this all of her life but unaware until weekend."

Then (on 9 June 2023) she made a complaint to AHPRA.

Her action (making a complaint against the practitioner) is consistent with her evidence (that she was upset that she had not been told about the malrotation).

Her complaint to AHPRA uses the same language as her email to the practice and then she added some new text to explain what had happened recently: "While this is all happening, I ended up in the ED last month due to some gut issues. I found out I have mid-gut non-rotation which showed up on a scan. I realise now that the scan Dr Hatoum was reading for me did indeed mention I had midgut malrotation and he did not mention to me I had this birth defect."

The practitioner didn't make any record of malrotation.

The practitioner's oral evidence is that he entered "Diverticular disease" in Patient A's medical records under "Active Past History" (not malrotation).

The practitioner's note of the telehealth on 13 October 2022 says Diverticular disease" as the "Reason for visit" (not malrotation).

The practitioner's note of the telehealth included "Long term advised constipation prevention with high fibre diet Needs care plan (dietician / psychologist + ? gasto for scopes)" (not malrotation).

The practitioner's oral evidence is that he thought the primary issue was constipation (not malrotation).

The expert evidence is that the practitioner's actions are not consistent with malrotation.

The practitioner's oral evidence is that he was not familiar with malrotation.

Yesterday (23 June 2025) his oral evidence was that he had not previously had a patient with malrotation.

Today (24 June 2025) his evidence is that he didn't know much about it.

The practitioner's oral evidence is that he cannot recall the exact words he said during the telehealth. The practitioner's oral evidence is that he would've mentioned "something".

The practitioner's evidence during the 150 hearing included "I didn't go through the differential diagnosis with her on the phone. I just said, "It's quite important that somebody examines your tummy. You should stay nil by mouth in case you need surgery. If you do eat anything, just eat very simple stuff tonight. Get it examined tomorrow."

When giving evidence during the 150 hearing about what he said during the telehealth consultation, the practitioner never suggested that he told the patient she had a condition she was born with. The patient was not required for cross-examination so it was never suggested to her that the practitioner told her she had a condition she was born with.

It wasn't a long consult. The patient says it only took a few minutes. The phone records suggest 3 minutes. The practitioner says it is unlikely it was less than 5 minutes.

In any event, the practitioner admits that during the telehealth he didn't appropriately explain the findings of bowel malrotation.

The expert says the practitioner's conduct is significantly below the relevant standard.

The Tribunal would accept the expert's evidence because:

The expert has ample expertise.

The expert was given the relevant briefing material.

The expert has explained his opinions in his report and supplementary report (both admitted without objection).

The expert's supplementary report also explains his GP experience and the relevant standard.

The practitioner did not object to the expert reports.

The expert was available to answer any questions if needed.

The practitioner did not require the expert for cross-examination.

The practitioner did not challenge the expert's expertise.

The practitioner did not tender any opposing expert evidence."

1. The HCCC submission then addresses the evidence in support of finding Particulars 3 and 4 established. That submission is as follows (footnotes omitted):

"The Commission submits that the Tribunal will find Particulars 3 and 4 of Complaint 1 proven, based on the evidence summarised in the Commission's written submissions plus the following evidence (outlined below).

The patient's complaint to AHPRA says that the practitioner did not mention malrotation.

The patient's statement says that the practitioner did not mention malrotation during the consultation.

The patient's statement and complaint were admitted without objection.

The patient was not required for cross-examination.

The practitioner did not challenge the patient's credibility.

The practitioner didn't make any record of malrotation.

The practitioner's note of the consultation on 14 October 2022 included abdo pain...[mild generalised] tenderness (not malrotation).

The practitioner's GP Plan mentions "diverticular disease" (not malrotation).

The practitioner's Team Care Arrangements mentions "diverticular disease" (not malrotation).

The patient's evidence is that the practitioner just "gave me a bit of dietary advice" (he didn't refer her to a surgeon for the malrotation).

The expert evidence is that the practitioner's actions are not consistent with malrotation.

The practitioner admits that during the consultation he didn't appropriately explain the findings of bowel malrotation.

The expert says the practitioner's conduct is significantly below the relevant standard."

1. The submission then addressed Complaint Two as follows (footnotes omitted):

"The Commission submits that the Tribunal will find Complaint 2 proven, based on the evidence summarised in the Commission's written submissions plus the following evidence (outlined below).

The starting point is that the Tribunal should accept the patient's evidence (about what the practitioner said and did).

The patient promptly complained to her husband about the consultation (her supplementary statement and phone bill confirm that).

Then she promptly complained about the consultation to her sister, who encouraged her to write down what happened and complain to the practice.

Then she emailed her complaint to the practice on 17 October 2022 (only 3 days after the consultation on 14 October 2022).

Then she followed through with her complaint, attended a meeting with the practice and took up the practice's offer to attend psychology sessions.

She attended the first session (on 16 November 2022) with the psychologist (Michelle Benson). She told the psychologist what happened during the consultation: "Advised by client VTM [Victoria Tower Medical] covering fees due to complaint made by [Patient A's first name] about GP she saw at VTM. Very reluctant to talk about incident or give any details - reassured this ok. Reported GP was very inappropriate both verbally + physically...Named Dr as George Hatoum + said she had made formal complaint to practice manager.

The psychologist encouraged Patient A to complain.

She continued attending sessions with the psychologist.

On the 9th session (9 June 2023), she again told the psychologist what happened during the consultation: "Mentioned still considering new GP. Likes Dr Sharma but wants to distance from VTM - concerned will panic if sees Dr Hatoum. Reported feeling anger towards Dr G Hatoum ...Reported Dr Hatoum was both verbally + physically inappropriate. Reported he made comment about [Patient A's first name]'s anatomical size + intimacy issues she may experience [with] husband. Reported she felt vulnerable and uncomfortable."

The psychologist again encouraged her to complain.

Then, on the same day as the 9th session (9 June 2023), the patient submitted her complaint to AHPRA. She explained the timing: After multiple sessions with the Michele Benson, I had been feeling much better. Michele felt that my anxiety was under control so she told me about the HCCC/Ahpra and encouraged me to make a formal complaint about Dr Hatoum. I lodged a formal written complaint on 9 June 2023.

Then she provided a detailed statement (attaching her email to the practice and her complaint to AHPRA) setting out the evidence she is prepared to give to the Tribunal and declaring that it is true.

The practitioner was served with Patient A's statement prior to the hearing and did not object to it being tendered.

Patient A's evidence (her email to the Clinic, her complaint to AHPRA, her statement and supplementary statements) are clear, credible and consistent.

The practitioner now admits asking questions and making comments to the effect of those in particular 1a-i. He admits that he made facial gesture which could have been perceived as winking and accepted it was possible he patted her knee."

1. The submission then addressed Complaint Three (poor records). We do not include the submission on this Complaint. We are satisfied that Complaint Three is established.
2. The submission then addressed Complaint Four (professional misconduct). This complaint is the most challenging for the Tribunal to determine. We set out here the submission of the HCCC on this Complaint (footnotes omitted):

"Complaint 4 is drafted so that the conduct in complaint 1, 2 and 3 is relied on both individually and cumulatively.

The Commission does not seek to confine the Tribunal's discretion regarding which conduct, or which combination of conduct, is sufficiently serious to amount to professional misconduct.

The practitioner denies professional misconduct.

Dealing with the conduct in Complaints 1, 2 and 3 in turn (outlined below).

Complaint 1 - poor care

Complaint 1 is sufficiently serious to amount to professional misconduct.

Patient A was a diligent patient.

She was referred (on 9 October 2022) for a CT scan and told to come back to the clinic or book a telehealth after the CT scan: "Imaging request printed to Burwood Medical Imaging: CT Scan - Abdomen. (LIF pain, pelvic US showed thickened bowel loop which may be secondary colitis. Had D and C in August. CT correlation suggested for ongoing pain) to be emailed to patient. Patient verbalizes understanding and accepts full responsibility to complete investigations as requested, and to return for result or book for telehealth."

She did the CT scan (on 11 October 2022).

She booked for telehealth (on 13 October 2022).

Patient A had access to the CT results (through the My Health Diary app).

Patient A does not have a medical background.

Patient A could not possibly understand the CT results.

It would be difficult for any patient to understand the words in the CT results.

It would be difficult for the patient to understand the importance of the CT results.

The patient was doing what she had been told to do. The purpose of the telehealth was to go through the results. The patient needed a doctor to explain the CT results.

The practitioner knew that the patient had already seen several doctors.

The practitioner had skimmed the notes from the previous consultations.

The practitioner had likely read the earlier notes (on 4 October 2022).

The practitioner couldn't recall whether he read the other notes (on 5 October 2022 or the next day) to see why the CT was ordered.

The practitioner probably read the notes on 9 October 2022, because it was the last consultation before the telehealth (on 13 October 2022).

At the telehealth (on 13 October 2022), the patient had severe abdominal pain.

At the consultation (on 14 October 2022), the patient again had abdominal pain.

The patient was unaware of the malrotation.

The gastroenterologist (Dr Borody) would be unaware of the CT results (on 11 October 2022) because the referral letter to the gastroenterologist was written by another medical practitioner (on 9 October 2022), before the CT scan results.

The practitioner didn't update the referral to the gastroenterologist.

The practitioner didn't send any correspondence to Dr Borody (on 13 or 14 October 2022).

The Team Care Arrangements was not given to Dr Borody.

The practitioner didn't refer to a surgeon.

Later, the patient was admitted to hospital with severe abdominal pain.

The patient couldn't give a complete history to the hospital because she was unaware of the malrotation.

Then the hospital did its own CT scan then diagnosed non-rotation.

Then another doctor at the practice (presumably after receiving the hospital discharge summary) entered non-rotation into Patient A's medical records under "Active Past History".

That is something the practitioner could have done when he saw the patient.

Then another doctor at the practice reviewed the CT scan previously done in October 2022 and referred the patient to a surgeon (operated to correct the malrotation).

That is something the practitioner could have done when he saw the patient.

The practitioner's conduct (not appropriately explaining the malrotation, not updating the gastroenterologist referral, not referring to a surgeon) impacted on continuity of care.

The practitioner's conduct posed a risk to Patient A, who was unaware of the malrotation and did not understand her condition.

Complaint 2 - inappropriate comments and actions

Complaint 2 is sufficiently serious to amount to professional misconduct.

Before the consultation with Patient A, the practitioner was already on notice of the Code of Conduct.

The Code of Conduct and Sexual Boundaries Guidelines were both provided to him in 2013.

In 2014, the practitioner had already been taken to the Code of Conduct in 2014 and "reminded in the strongest terms that there are certain professional values on which all doctors are expected to base their practice".

The Code of Conduct was again provided to him in July 2020, January 2022 and May 2022.

Before the consultation with Patient A, the practitioner had already completed training about his ethical obligations and managing boundaries.

In 2020, 8 hour course about "Fundamentals of Medical Ethics".

In 2021, courses about "Common Medico-Legal Issues for General practitioners" and "Managing boundaries in patients with mental health issues."

In 2021, course about "Building Strong Patient Relationships".

In 2021, 9 hour course about "Communication and Consent" and course about "Ethics, obligations, knowledge and skills Professionalism in medicine".

In April 2022, the practitioner assured the Tribunal that he had also completed courses which had "armed him with information and skills" to understand and avoid engaging in similar conduct in the future, including "Ethical and legal considerations in general practice, and "Managing Difficult Patients".

The practitioner completed all that training before the telehealth and consult with Patient A (in October 2022).

Given that the practitioner had already done specific training about boundaries, that makes his conduct during the consultation with Patient A more serious.

Before the consultation with Patient A, the practitioner was already on notice about the importance of avoiding inappropriate remarks.

In 1999, he was deregistered based on conduct (which he denied, but was found proven) including that in 1996, he had a consultation with another female patient about her weight then asked her whether she masturbated and made an inappropriate and improper comment.

Having been in trouble for talking to a female patient about masturbation before, he is on notice to be careful about what he says.

In preparation for his reinstatement application, the practitioner offered assurances that he had made changes.

In 2002, he told Dr McMurdo that he "admits that his behaviour is outgoing, flamboyant and exuberant compared with many medical practitioners, and says he has changed this very consciously."

He also attended counselling sessions with Dr Chung, saying that he had engaged in introspection and "made changes in his practice ... re-arranging the seating arrangements in his office and his way of relating to his patients.... and instituted remedial behavioural change ... to prevent future repetition of such problems arising in his patient relationships".

The practitioner also assured the Tribunal that he "was guilty of inexperience and of poor communication skills" and had "I instituted many small but important changes to the way I practised medicine. I am very anxious to avoid these sorts of problems in the future".

In 2013, the practitioner gave evidence at the section 150 hearing about two other female patient complaints (who made allegations which he denied). He assured the delegates that after those allegations (including alleged inappropriate sexual questions and inappropriate touching), he had decided to gradually withdraw from general practice in order to "protect himself", he was no longer examining female patients unaccompanied, he had removed the lock on his consultation room door and the curtain between the desk and the couch and he "intends never to conduct an intimate examination of a woman except in an emergency, or in the presence of a chaperone".

In 2014, the practitioner assured the Counselling Interviewers that his receptionist is trained to ensure that he is not put in the position of needing to see female patients, he had deliberately not had a curtain in his room or a lock on his door and he mentioned seeking advice from his indemnity provider on further measures to help protect him from complaints.

He also assured the Counselling Interviewers that he recognised that he needs to take further steps to safeguard himself from complaints, that he intends to see no female patients apart from children and elderly solely Arabic speaking women, to not see female patients unless there is another female staff member present in the practice (and employ a practice nurse), to change his approach with patients such that he is less "friendly" and easy going (as was his previous approach) and be more reserved in his interactions, e.g. he will be less likely to enquire about their relationships or sensitive issues in their lives, to refer patients to psychologists (rather than offer support or counselling himself) and to be more aware that any physical contact can be misinterpreted.

The Counselling Interviewers reminded the practitioner "in the strongest of terms of the importance of strict boundaries, good communication and being aware of the needs of vulnerable patients."

The Counselling Interviewers also advised him not to consult females between 14 and 75 when his conditions fall away.

At that time, the Counselling Interviewers were satisfied that the practitioner was determined to make the changes in his practice and career direction required to remove as much as possible the risk that he will be the subject of future complaints so no further action was taken.

The assurances that the practitioner gave back in 2014 are particularly important when assessing the seriousness of the practitioner's conduct with Patient A.

The practitioner sat down with his peers during the Counselling Interview in 2014 and intended to be more reserved in his interactions with patients, to refer patients to psychologists rather than counsel them himself and be more aware of his physical contact so he should have been acutely aware of his comments and actions with Patient A, which makes his conduct more serious.

In 2020, the practitioner assured the Council that he had been "very strict" about not seeing female patients since 2014 because of his past difficulties in relation to boundary issues to protect himself from further allegations but sometimes might see a female patient if she comes in with her husband, is very elderly and only speaks Arabic, or if a mother attends with her children and there are no other GPs available to see her. The practitioner considered himself a 'handsy' person (he talked with his hands, was likely to reach out to touch and comfort patients) but assured the Council that he ensures he keeps physically distanced by placing the female patient on one side of the desk and himself on the other. The practitioner told the Council that he interpreted the Counselling Interviewers' advice (not to see female patients between the ages of 14 and 75) to mean he should not see unaccompanied female patients for his own protection, to guard against accusations, and stuck to the Counselling Interviewers' advice most of the time (unless the female patient was accompanied or a CTP matter).

In January 2022, the practitioner assured the Council that he had discussed boundary crossing allegations with Dr Pignataro, said he might have been "overfriendly to female patients" and needed to "guard and protect himself in the future", avoid "transference to patients", "assist as a normal GP", be very factual rather than emotional.

In July 2022, the practitioner had already been put on notice that the Tribunal was concerned about boundaries, noting that his past proven conduct "leaves us concerned about the practitioner's ability to be able to recognise what are proper boundaries for a doctor/patient relationship and for the practitioner to be able to abide by those boundaries."

Given that the practitioner had already taken steps and given assurances about avoiding future complaints, that makes his conduct during the consultation with Patient A more serious. The practitioner was taken to his intentions and assurances in oral evidence, he was already on notice not to be over-friendly, not to be too chatty, not to jest and agreed there was nothing funny during the consultation with Patient A.

Before the consultation with Patient A, the practitioner already had lengthy therapy with Dr Pignataro

He started attending weekly therapy sessions in September 2020, then fortnightly from February 2021, then monthly from August 2021, then twice since August 2022 to discuss his return to work).

He explained that Dr Pignataro helped him understand boundaries with patients, being aware of over-identification with patients or transference issues... but always with the issue of boundaries as the most important one. The therapy sessions covered a lot of issues about communication."

1. In addition to the above matters set out in the HCCC submission, the submission addressed the following matters which we do not here set out in full.

(1) Before the consultation with Patient A, the Respondent had already dealt with some issues arising from returning to practice.

(2) Before the consultation with Patient A, the Respondent should have been familiar with seeing female patients and he had the option to refer them to his female colleagues if needed.

(3) The Respondent claimed that he had "hardly ever seen female patients", avoided seeing female patients and tried to avoid women's health.

(4) During the consultation with Patient A, the Respondent must have known that the patient was vulnerable.

(5) The Respondent's conduct is serious because it posed an obvious risk of emotional harm to Patient A.

(6) The Respondent did not have any sexual counselling qualifications.

1. The submission further set out (footnotes omitted):

"The practitioner's conduct is serious because he persisted, even when the practitioner knew that the patient was uncomfortable: 'The level of discomfort probably, you know, climaxed just before the consultation ended. I mean, we were, you know, going deep and deeper into territory where I feel uncomfortable, she feels uncomfortable'.

...

The practitioner's conduct posed an obvious risk of emotional harm, which eventuated.

The patient explained: 'I have never walked out of a doctor's office feeling so violated and uncomfortable in my life.'"

1. The submission then addressed the seriousness of Complaint Three. The submission included the following (footnotes omitted):

"Complaint 3 is sufficiently serious to amount to professional misconduct.

Failure to follow up matters that patients have previously raised poses a considerable risk to practices and practitioners.

The practitioner was already familiar with the importance of good records.

Before the consult with Patient A, the practitioner had already been in trouble for poor records and had already completed specific education about records: "I've been in trouble because I've pushed the boundaries with medical records in the past and I learnt, you know, quite a hard lesson about how important these things are. So doing these courses, you're always learn... I have to be more careful with this sort of things."

The practitioner had already told the Council in January 2022 that he understood his medical records were poor due to time pressure and short cuts."

1. The HCCC submitted that the seriousness of the conduct of the Respondent is sufficient to satisfy the requirement of s 139E of the National Law and that the Tribunal would find Complaint Four established.

The written submission of the Respondent dated 20 June 2025 (MFI 3)

1. The Respondent provided a written submission which was filed on 20 June 2025. In that we particularly noted the following. We include here some extracts from that submission:
2. The submission commences with the following overview:

"Dr Hatoum (the Respondent) is the subject of four complaints arising out of his interactions with a single patient (Patient A) at two consultations; one by teleconference and one face to face, on consecutive dates in October 2022. They arose while he was working at the Victoria Tower Medical (VTM) practice.

As soon as the complaints were drawn to his attention, the Respondent reflected on the conduct asserted and provided an explanation. He has now set out the explanation in written statements and in oral evidence, in a number of forums."

1. The submission then addresses the written submission of the HCCC which had been prepared prior to the hearing before us. The submission includes (footnotes omitted):

"Save for certain identified particulars in complaint Two (expanded upon below), Dr Hatoum accepts the substance of these complaints. Further, he embraces the opportunity to learn from his mistakes. He has continued to practice without incident, and has thus not been the subject of any further complaints in almost three years since the conduct involving Patient A.

In March 2024, the respondent commenced practice at First Care Medical Centre Bankstown ('FCMC'), which accommodates eight general practitioners, two psychologists, two podiatrists, a physiotherapist and an exercise physiologist.

The FCMC is smaller than the VTM and the Respondent is enjoying practicing at FCMC, where he has developed a strong following of regular patients."

1. The submission then addressed matters of Background and the evidence given by the Respondent at the section 150 hearing conducted on 21 June 2023. We have read the extracts of that evidence which are set out in the submission. We note the point sought to be emphasised by those extracts, namely that the Respondent did not seek to obfuscate or detract from a clear admission of guilt in relation to the bulk of the allegation made by Patient A. He noted in the hearing before us he was prepared to concede that he may have acted in the manner alleged even where he had no clear memory of so doing. The submission goes to supporting an assertion that the practitioner's integrity cannot be challenged.
2. The submission addressing the evidence given by the Respondent in the section 150 hearing on 21 June 2023 is very lengthy and all-encompassing. We have read that part of the submission however, we find it unnecessary to repeat it here.
3. In relation to Complaint One the Respondent submitted: "The Respondent admits the entirety of the complaint, including the particulars, and has not required the Commission's expert for cross examination."
4. In relation to Complaint Two, Particulars 1(a) to (i) the submission states: "The Respondent admits that comments to this effect were made, and that this amounts to unsatisfactory professional conduct."
5. In relation to Complaint Two, Particulars 2(a) to (b), the submission states: "The Respondent denies these particulars." We observed however, that during the hearing the Respondent conceded he could have patted Patient A on the leg and that his facial expressions may have been seen as or interpreted by Patient A as a wink. However, he asserted he did not intentionally wink at her.
6. The submission addressed Complaint Three. The Respondent admits Complaint Three.
7. In relation to Complaint Four the submission states:

"Although the Respondent has made frank admissions as to shortcomings in his dealing with Patient A, it is respectfully submitted that it is not so grave that it warrants a finding of professional misconduct."

1. The submission then addressed the onus the HCCC is under in relation to establishing its case. The submission also addressed matters of law relating to the legal test for establishing professional misconduct. The Respondent submitted:

"Legal Principles

40. In assessing whether the Respondent's conduct amounts to professional misconduct, the following principles apply:

i. There is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct; (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]- [21])

ii. The traditional common law definition of professional misconduct is that 'which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency;' Allinson v General Council of Medical Education and Registration [1984] 1 QB 750

iii. Professional misconduct may be made out by a deliberate departure from professional standards or 'such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration'; Pillai v Messiter [No.2] (1989)16 NSWLR 197; and

iv. The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638."

1. At the conclusion of the hearing the Respondent made oral submissions. We noted the following in that submission:
2. The Respondent admits Complaint One in its entirety. The Respondent first recorded his memory of the consultations with Patient A in July 2023. His evidence is given, in part, relying on his usual practice rather than actual recollection.
3. The Respondent submits that the abdominal examination of Patient A on 14 October 2022 was appropriate. We note there is no assertion by the HCCC that the examination was inappropriate.
4. The Respondent has conceded he did not at the time of the consultations know about intestinal malrotation. He agrees he should have updated the gastroenterologist's referral. The Respondent referred to the expert's report at page 221 relating to pain during intercourse. There the expert was providing an opinion based upon the version of fact given by the Respondent in relation to the conversation between he and Patient A on 14 October 2022. The Respondent had suggested that Patient A had volunteered that she experienced more pain during intercourse. We note that fact was not put to Patient A as she was not required for cross-examination. As the hearing proceeded on the basis of accepting the evidence of Patient A unchallenged, the Respondent cannot now rely on his version of the consultation with Patient A which was never put to her, and which was not the subject of dispute in the hearing.
5. In her statement which is contained in exhibit A1 and which we have referred to earlier, Patient A does say that the Respondent asked her: "I am just curious to know if it hurts when you have intercourse with your husband." She stated she was so shocked by the question that she didn't really answer it. Further, in context, the question appeared to relate more to vaginal pain/hurt rather than stomach pain, which was the symptom she presented with to the Respondent. The assumption as to where the pain/hurt might be in relation to sexual intercourse is further developed by the Respondent having asked Patient A about the size of her husband's penis. In her supplementary statement which is contained at page 42 of exhibit A1, Patient A said that there had been a typing error in paragraph 11 of her original statement (also contained in exhibit A1) and that the paragraph should have stated: "Then he asked me "Is your husband's penis big?" and said something like "You're quite tiny so if you're feeling pain maybe you should get on top during sex."
6. In relation to the Respondent's failure to document any of his discussion with Patient A relating to sexual matters, he conceded, even if Patient A had asked him not to make any notes about that subject (something Patient A denied doing) he should have made an entry in her medical notes.
7. It is put on behalf of the Respondent that he was not fully aware of the degree of vulnerability Patient A had. He has seen the extent of her anxiety set out in the counselling notes tendered in this hearing.
8. In relation to Complaint Two, the Respondent points out that the Complaint is framed as either unsatisfactory professional conduct as defined in s 139B(1)(a) or alternatively s 139B(1)(l) of the National Law. The Respondent submits that if the HCCC succeeds on s 139B(1)(a) then the count under s 139B(1)(l) falls away. The HCCC agrees that is correct.
9. In relation to Complaint Four, the Respondent's case is that although the complaints are serious, they are not so serious, either individually or collectively to satisfy the test in s 139E of the National Law.

The HCCC submission in reply to the Respondent's submission

1. The HCCC submitted the following in reply to the Respondent's submission (footnotes omitted):

"The Tribunal would not accept the practitioner's suggestion that his conduct was less serious because he was "clumsy".

Is it difficult for the patient to know the practitioner's subjective intention (when he asked her about masturbation and patted/winked).

The practitioner agreed that none of his comments or questions about her sex life were prompted by her.

The practitioner agreed that he should have explained why he was asking those questions.

The Commission has alleged Complaint 2 is unsatisfactory professional conduct in the alternative - under (a) significantly below the relevant standard or (l) improper or unethical conduct.

The Commission's written submissions explain why the conduct is improper or unethical conduct.

If the Tribunal accepts the expert evidence that the practitioner's conduct is significantly below the standard, it is not necessary to also find that it is improper or unethical.

The Tribunal would not accept the practitioner's suggestion that his conduct was less serious because there was only one patient.

Professional misconduct is defined in the National Law.

There is no principle that requires the Tribunal to have two or more patients before it can find professional misconduct.

The Tribunal can, and previously has, made findings about professional misconduct in matters involving a single patient.

The Tribunal would not accept that the Respondent's conduct was less serious because medical practitioners who come before the Tribunal often have poor notes.

The Court of Appeal decision of Litchfield says: 'The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.'"

1. We are satisfied that the HCCC has established the complaints nominated as Complaint One, Complaint Two and Complaint Three. In that respect we accept the submission of the HCCC which we have set out earlier. In making that finding we have accepted the evidence of Patient A. We have done so conscious of the fact that witnesses to the same events may have different recollections of the circumstances which unfolded. We note the recording of recollections of Patient A of her consultations with the Respondent were reasonably proximate to the event. We note the admissions of the Respondent to the nature and topics of the conversations which occurred and his physical actions (touching Patient A's knee and winking at her) during his consultations with her. We note that Patient A was not required for cross-examination on her evidence which has added to our decision to accept her evidence at its highest.
2. We have considered the seriousness of the conduct of the Respondent established before us and we reach the conclusion that the conduct set out in Complaint Two alone is of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration.
3. In relation to Complaint Two, Particular 2 (patting Patient A on the knee), the Respondent had said that any such action was undertaken by him as a means of reassurance, presumably in the circumstance that Patient A appeared troubled or anxious at the time. We here state that such touching of a patient for a non-medical purpose, is not acceptable. To the extent it may be said such actions of reassurance were acceptable in the past, we do not accept that, nor do we accept that there needs to be adjustment in consideration of such conduct based on traditional cultural differences. It is clear that the touching of a patient during a medical consultation, where the touching is not the subject of clear consent and a necessary part of performing an action with a medical purpose, is unacceptable.
4. If we be wrong in our assessment that the conduct of the Respondent, as set out in Complaint Two, is alone sufficient to establish professional misconduct (s 139E), then we find that the instances of unsatisfactory professional conduct as established by the HCCC in this hearing (Complaints One, Two and Three) collectively, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration.
5. Following the findings made herein, we will make orders stating the conclusions to this Stage One hearing. The matter is otherwise adjourned for the final part of the hearing to consider what protective orders, if any, should be imposed (Stage Two). Directions have been made for the filing and serving of further evidence for the Stage Two hearing.
6. It is appropriate to make an order prohibiting the disclosure of the name of any patient referred to in the evidence tendered or given in this hearing.
7. It is appropriate that the question of the costs of this hearing and the proceeding be determined as part of the Stage Two hearing.

(1) The Respondent is guilty of unsatisfactory professional conduct (ss 139B(1)(a) and 139B(b) of the Health Practitioner Regulation National Law (NSW) (National Law)), and he is guilty of professional misconduct (s 139E of the National Law).

(2) The question of each party's costs of this hearing and the proceeding is deferred until the conclusion of the scheduled Stage Two hearing in this matter.

(3) Pursuant to clause 7 of Schedule 5D of the National Law, the disclosure of the name of any patient referred to within the evidence adduced in this proceeding (including exhibit A1) is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.